Petition for Writ of Certiorari — Cedric Jeffries, Petitioner v. Ohio

APPENDIX

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

v. Jeffries, Slip Opinion No. 2020-Ohio-1539.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typo graphical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2020-OHI0-1539

THE STATE OF OHIO, APPELLEE, v. JEFFRIES, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State v. Jeffries, Slip Opinion No. 2020-Ohio-1539.]

Ohio's rape-shield law—R.C. 2907.02(D) and R.C. 2907.05(E)—Both consensual

and nonconsensual sexual activity are barred from admission into evidence

by Ohio's rape-shield law, absent one of the specific exceptions listed in the

law.

(No. 2018-0338—Submitted March 27, 2019—Decided April 22, 2020.)

APPEAL from the Court of Appeals for Cuyahoga County, No. 105379,

2018-Ohio-162.

DONNELLY, J.

{4 1} In this discretionary appeal we are asked to determine whether Ohio’s

rape-shield law prohibits the admission of evidence of an accuser’s prior

nonconsensual sexual activity. Appellant, Cedric Jeffries, asserts that the rape-

shield law applies only to an accuser’s prior consensual sexual activity and that he

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was wrongfully prohibited from introducing evidence at his jury trial for rape and

kidnapping that the accuser, D.S., had previously been sexually assaulted by

another person.

{2} We hold that Ohio’s rape-shield law unambiguously applies to both

consensual and nonconsensual sexual activity. The trial court and Eighth District

Court of Appeals correctly applied Ohio’s rape-shield law and determined that

evidence of D.S.’s prior sexual assault was inadmissible. We therefore affirm the

judgment of the Eighth District Court of Appeals upholding Jeffries’s convictions.

BACKGROUND

{{] 3} D.S.’s mother lost custody of D.S and two of D.S.’s half-siblings

during the early years of the children’s lives. The children then went into foster

care. D.S. lived in three different foster homes before she was six years old. In

2006, when D.S. was six years old, H.G., Jeffties’s mother, obtained custody of

D.S. and her two half-siblings. Jeffries lived in the home with H.G. and the

children. Jeffries is the biological father of one of D.S.’s half-siblings. Although

D.S. was not Jeffries’s biological child, he was a father figure to her. D.S. lived

with H.G. and Jeffries until March 2016, when D.S. reported that Jeffries had

repeatedly sexually abused her over the course of approximately nine years.

{{] 4} The state decided to pursue four criminal charges against Jeffries

related to two specific instances of sexual abuse. Pursuant to a grand-jury

indictment, Jeffries was charged with kidnapping and raping D.S. when she was 12

years old and kidnapping and raping D.S. when she was 16 years old.

{{| 5} During the discovery process, counsel for the defense and the state

were permitted to review D.S.’s child-abuse-investigation records maintained by

the Cuyahoga County Department of Children and Family Services. Those records

revealed that when D.S. was four or five years old, she reported to the children-

services agency that a foster brother had sexually assaulted her.

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January Term, 2020

{4 6} On the first day of Jeffries’s jury trial, prior to voir dire, defense

counsel indicated that she did not plan on questioning D.S. about her prior

allegation of sexual abuse and therefore would not need the court to conduct an in

camera hearing pursuant to State v. Boggs, 63 Ohio St.3d 418, 588 N.E.2d 813

(1992), to determine whether such questions would be prohibited by the rape-shield

law. Counsel apparently reconsidered soon after, and on the next day, after voir

dire had begun, the trial court took a break from voir dire and conducted a Boggs

hearing. At the hearing, D.S. testified that when she was four or five years old and

living in a foster home, a foster brother living with her had touched her

inappropriately and compelled her to engage in vaginal intercourse. She testified

that she had been truthful when reporting the incident to the children-services

agency. The trial court concluded that the incident involved sexual activity and

therefore it appeared it should be barred from admission into evidence by Ohio’s

rape-shield law.

{7} Defense counsel argued that although D.S.’s prior sexual assault

involved sexual activity, the rape-shield law and Boggs did not prevent the

admission of evidence about that assault, because the sexual activity was

nonconsensual. The defense argued that the purpose of the rape-shield law is

limited to protecting victims from being harassed about their consensual sexual

history and therefore prior sexual assaults are outside the scope of protection.

Defense counsel asserted that the evidence was necessary for the purpose of

establishing D.S.’s “knowledge of the system” and for potentially rebutting any

inference the jury might make that D.S.’s behavioral issues around age nine or ten

were the result of sexual abuse by Jeffries.

{{] 8} The trial court rejected the defense’s argument and held that Ohio’s

rape-shield law and Boggs address all sexual activity, not only consensual sexual

activity. Because the judge did not want to continue to make the prospective jurors

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wait to finish voir dire, she told counsel that she would explain her analysis in more

detail later.

{{ 9} The following day, after several witnesses had testified and the jury

had been released for the day, the judge explained in more detail her rape-shield

ruling. She stated that the plain language of the rape-shield law prevented the

admission of the evidence, that she was satisfied from the evidence presented that

D.S.’s allegation of abuse by her foster brother was true, and that the caselaw

submitted by the defense was not controlling or persuasive.

{{ 10} Defense counsel then asserted that the evidence of the prior assault

should be admitted to explain H.G’s testimony describing D.S.’s acting-out

behavior. The judge noted that she had prohibited the state from implying that

D.S.’s behavioral issues were connected with molestation, absent the provision of

expert testimony to establish that connection. Also, the judge indicated that the

evidence of the prior sexual assault was not particularly relevant given that there

had been no evidence that D.S. had behavioral issues around age four or five and

very little evidence that D.S. later acted out in a way that was abnormal for a preteen

who had lived in multiple foster homes.

{{ 11} During Jeffries’s trial, the state presented evidence indicating that

Jeffries had molested D.S. over the course of approximately nine years and that he

had compelled D.S. to engage in vaginal intercourse on multiple occasions,

including two specific incidents—one when D.S. was 12 years old and another

when she was16 years old. The jury found Jeffries guilty of all four counts. After

merging certain counts for purposes of sentencing, the trial court imposed an

aggregate prison sentence of 15 years to life and classified Jeffries as a Tier III sex

offender.

{12} Among his arguments on appeal, Jeffries asserted that prior

instances of nonconsensual sexual activity are outside the scope of the rape-shield

law and are therefore admissible. And because the sexual assault by D.S.’s foster

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January Term, 2020

brother was admissible, Jeffries argued, the trial court’s exclusion of the evidence

violated Jeffries’s constitutional right to confront the witnesses against him. The

appellate court rejected Jeffries’s argument on authority of Boggs, 63 Ohio St.3d

418, 588 N.E.2d 813. It noted that Boggs referred to “sexual activity” as including

both nonconsensual and consensual sex and that Boggs held that evidence of “either

type of activity” is barred from admission by the rape-shield law, Boggs at 423.

The appellate court therefore affirmed the trial court’s ruling on the applicability of

the rape-shield law.

{§ 13} We accepted one proposition of law for review:

- Ohio’s rape shield law prohibition on the admission of

“specific instances of the victim’s sexual activity” applies only to

consensual sex [and does not apply to] questions related to prior

sexual abuse.

See 152 Ohio St.3d 1477, 2018-Ohio-1989, 98 N.E.3d 292.

ANALYSIS

{14} Ohio’s rape-shield law protects both the accuser and the defendant

from the admission of evidence of prior sexual activity. The law is contained in

statutes defining the crimes of rape, R.C. 2907.02, and gross sexual imposition,

R.C. 2907.05, both of which include the following:

Evidence of specific instances of the victim’s sexual activity,

opinion evidence of the victim’s sexual activity, and reputation

evidence of the victim’s sexual activity shall not be admitted under

this section unless it involves evidence of the origin of semen,

pregnancy, or disease, or the victim’s past sexual activity with the

offender, and only to the extent that the court finds that the evidence

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is material to a fact at issue in the case and that its inflammatory or

prejudicial nature does not outweigh its probative value.

Evidence of specific instances of the defendant’s sexual

activity, opinion evidence of the defendant’s sexual activity, and

reputation evidence of the defendant’s sexual activity shall not be

admitted under this section unless it involves evidence of the origin

of semen, pregnancy, or disease, the defendant’s past sexual activity

with the victim, or is admissible against the defendant under section

2945.59 of the Revised Code, and only to the extent that the court

finds that the evidence is material to a fact at issue in the case and

that its inflammatory or prejudicial nature does not outweigh its

probative value.

R.C. 2907.02(D); R.C. 2907.05(E).

{§| 15} Our resolution of this case turns on the meaning of the term “sexual

activity” as it is used in R.C. 2907.02 and 2907.05. The meaning of statutory

language is a question of law, which we review de novo. State v. Vanzandt, 142

Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, | 6. A fundamental preliminary

step in our analysis of any legislation is to review the plain language of the statute.

Id. at | 7. “When the language of a statute is plain and unambiguous and conveys

a clear and definite meaning, there is no need for this court to apply the rules of

statutory interpretation.” Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d

549, 553, 721 N.E.2d 1057 (2000). When there is no ambiguity on the face of the

statute, it must simply be applied as written. Lake Hosp. Sys., Inc. v. Ohio Ins.

Guar. Assn., 69 Ohio St.3d 521, 524, 634 N.E.2d 611 (1994).

{{ 16} We must read statutory words and phrases in context and construe

them in accordance with the rules of grammar and common usage. State ex rel.

Barley v. Ohio Dept. of Job & Family Servs., 132 Ohio St.3d 505, 2012-Ohio-3329,

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January Term, 2020

974 N.E.2d 1183, 4 20. But words and phrases that have a technical or particular

meaning by legislative definition must be construed accordingly. Jd. at § 21.

“Where a statute defines terms used therein which are applicable to the subject

matter affected by the legislation, such definition controls in the application of the

statute.” Woman's Internatl. Bowling Congress, Inc. v. Porterfield, 25 Ohio St.2d

271, 267 N.E.2d 781 (1971), at paragraph two of the syllabus.

{[ 17} For purposes of R.C. 2907.01 through 2907.38, the General

Assembly defines “sexual activity” as “sexual conduct or sexual contact, or both”

and defines “‘sexual conduct” and “sexual contact” as follows:

(A) “Sexual conduct” means vaginal intercourse between a

male and female; anal intercourse, fellatio, and cunnilingus between

persons regardless of sex; and, without privilege to do so, the

insertion, however slight, of any part of the body or any instrument,

apparatus, or other object into the vaginal or anal opening of another.

Penetration, however slight, is sufficient to complete vaginal or anal

intercourse.

(B) “Sexual contact” means any touching of an erogenous

zone of another, including without limitation the thigh, genitals,

buttock, pubic region, or, if the person is a female, a breast, for the

purpose of sexually arousing or gratifying either person.

R.C, 2907.01. The foregoing definitions do not reflect any terminology that would

exclude nonconsensual sexual activity. “Sexual conduct” is defined quite clinically

in terms of specific physical actions. The definition for “sexual contact”? makes it

clear that the contact does not have to be wanted by both parties involved; it must

be wanted only by “either person.”

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{¥ 18} Nothing in the plain language of the statute indicates that “sexual

activity” means “consensual sexual activity.” Such an interpretation in fact would

contravene our clear duty not to alter the language of a statute by adding or

removing words. See Piazza v. Cuyahoga Cty., 157 Ohio St.3d 497, 2019-Ohio-

2499, 138 N.E.3d 1108, J 16, citing Bailey v. Republic Engineered Steels, Inc., 91

Ohio St.3d 38, 39-40, 741 N.E.2d 121 (2001), Provident Bank v. Wood, 36 Ohio

St.2d 101, 105, 304 N.E.2d 378 (1973), and Cleveland Elec. Ilum. Co. v.

Cleveland, 37 Ohio St.3d 50, 524 N.E.2d 441 (1988), paragraph three of the

syllabus. Accordingly, the plain meaning of “sexual activity” does not contain any

volitional element.

{¢ 19} Other uses of the term “sexual activity” as defined in R.C. 2907.01

within the Revised Code are consistent with our reading of the definition. For

example, R.C. 2907.322 prohibits the pandering of materials depicting minors

involved in “sexual activity,” which certainly includes nonconsensual sexual

activity. See State v. Meadows, 28 Ohio St.3d 43, 49, 503 N.E.2d 697 (1986).

When consent, or lack thereof, is relevant to an offense, it is an independent element

that must be proved separately from the element of sexual activity. For example,

to prove rape, the state must prove both that sexual conduct occurred, R.C.

2907.02(A)(1), and that force was used or the victim was unable to consent, R.C.

2907.02(A)(1)(a) through (c). See also R.C. 2907.02(A)(2) (“No person shall

engage in sexual conduct with another when the offender purposely compels the

other person to submit by force or threat of force”).

{¥ 20} Moreover, our reading of the rape-shield law as applying to

nonconsensual sexual activity is consistent with our decision in Boggs, 63 Ohio

St.3d 418, 588 N.E.2d 813. When reviewing Boggs’s appeal from his convictions

for rape, kidnapping, and felonious assault, the Fourth District Court of Appeals

held that the rape-shield law did not cover any prior accusations of rape, because

they did not constitute “sexual activity.” State v. Boggs, 4th Dist. Adams No. CA

January Term, 2020

494, 1991 WL 13735, at *7-8. The Fourth District’s decision was found to be in

conflict with State v. Hurt, 3d Dist. Hancock No. 5-87-24, 1989 WL 22049 (Mar.

16, 1989), which held that prior accusations of rape involved sexual activity and

therefore were barred by the rape-shield law. We reversed the Fourth District’s

decision, explaining that the rape-shield law is inapplicable only when the prior

accusation of sexual assault involves a fabrication of sexual activity. Boggs, 63

Ohio St.3d at 423, 588 N.E.2d 813. But if the accusation is true, the matter involves

sexual activity and the rape-shield law does apply. Id. We therefore remanded

Boggs’s case to the trial court to hold an in camera hearing to determine the truth

or falsity of the prior rape accusation at issue.

{{ 21} Jeffries contends that we changed course from Boggs and chose not

to apply the rape-shield law to nonconsensual sexual activity in State v. Williams,

134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, which involved the

admissibility of evidence of prior acts of sexual abuse committed by the defendant.

But the reason we did not evaluate the admissibility of the evidence under the

standards of the rape-shield law in Williams was that the parties did not raise the

issue. Instead we addressed the interplay between Evid.R. 404(B) and R.C.

2945.59. No meaning should be imputed from the fact that we did not sua sponte

raise and address an issue not briefed by the parties. Further, Williams did not

overrule Boggs, nor did it overrule State v. Schaim, 65 Ohio St.3d 51, 600 N.E.2d

661 (1992), which recognized that the rape-shield law should be applied in

determining whether a defendant’s other acts of sexual abuse are admissible. Jd. at

59-60.

{{] 22} Notwithstanding the unambiguous meaning of the term “sexual

activity” as defined in R.C. 2907.01, Jeffries contends that the clear purpose of the

rape-shield law is limited to preventing “impermissible attacks on some Victorian-

minded theory of promiscuity.” He asserts that applying the rape-shield law to an

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accuser’s nonconsensual sexual activity does nothing to promote the purpose

behind the law. We disagree.

{{ 23} We have previously noted that the rape-shield law promotes several

interests: (1) preventing harassment of the victim with probing inquiries into private

matters, (2) discouraging “the tendency in rape cases to try the victim rather than

the defendant,” (3) encouraging victims to report sexual assaults without fear of

being harassed and traumatized by the process, and (4) “excluding evidence that is

unduly inflammatory and prejudicial, while being only marginally probative.”

State v. Gardner, 59 Ohio St.2d 14, 17-18, 391 N.E.2d 337 (1979). All of these

interests serve the fundamental goal of facilitating the truth-finding function of a

trial. The truth-finding function is undermined if victims are discouraged from

coming forward or if irrelevant, inflammatory evidence distracts the finders of fact.

{¥ 24} The ability to use evidence of prior sexual activity to harass and

traumatize the victim and mislead a jury does not stop at the line between

consensual and nonconsensual sexual activity. Unnecessary and invasive

questioning into past sexual experiences could be just as embarrassing and

traumatic when one is asked about prior sexual assaults as it is when one is asked

about his or her past consensual sexual activity. See State v. Budis, 125 N.J. 519,

528, 593 A.2d 784 (1991); State v. Besk, 138 N.H. 412, 414, 640 A.2d 775 (1994).

Moreover, an accuser’s prior sexual activity of any kind, even nonconsensual

activity, is irrelevant in most cases. See State v. DeSantis, 155 Wis.2d 774, 792-

793, 456 N.W.2d 600 (1990).

{25} To say that the purpose of the rape-shield law is not furthered by

excluding evidence of an accuser’s past sexual abuse is to vastly underestimate the

insidiousness of victim blaming. We reject Jeffries’s narrow interpretation. Our

holding that nonconsensual sexual activity is included in the meaning of “sexual

activity” in the rape-shield law furthers the fundamental purpose of the law.

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January Term, 2020

However, it is worth reemphasizing that the rape-shield law does not apply to prior

accusations of sexual assault that involve a fabrication of sexual activity.

{| 26} Jeffries further argues that the rule of lenity, the rule that courts

should construe statutes so as to preserve their constitutionality, and the absurdresult doctrine all require the law to be narrowly construed to exclude

nonconsensual sexual activity. We reject each of these arguments in turn.

{{ 27} To begin with, the rule of lenity applies to rules “defining offenses

or penalties.” R.C. 2901.04(A). Because the rape-shield law governs the

admissibility of evidence and does not define a crime or penalty, the rule of lenity

is not applicable. Next, the preservation-of-constitutionality rule is applicable

when ambiguous statutory language is subject to two plausible interpretations, one

of which renders the statute unconstitutional. See Salinas v. United States, 522 U.S.

52, 59, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997). But when the statutory language is

unambiguous, the possibility of its unconstitutionality does not give the judiciary

license to alter its language. See id. at 59-60. Because the term “sexual activity”

is clear and unambiguous, the rule is inapplicable.

{28} We note that within Jeffries’s preservation-of-constitutionality

argument, he asserts that the rape-shield law is unconstitutional as applied to

defendants whose constitutional rights to due process and to confront witnesses are

impaired by the inability to provide relevant, probative evidence about an accuser’s

nonconsensual-sexual-activity history. This argument was contained in Jeffries’s

second proposition of law, and we did not accept jurisdiction over that proposition

of law. Our decision today is limited to a determination of the meaning of the terms

of the rape-shield law. We leave for another day the issue whether prohibiting the

admission of evidence of an accuser’s history of nonconsensual sexual activity

under the rape-shield law might be unconstitutional as applied in certain cases.

{7 29} Finally, Jeffries’s absurd-result argument is unavailing. As we have

explained, there is nothing absurd about the General Assembly’s desire for the rape-

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1]

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shield law to exclude evidence of prior instances of both nonconsensual and

consensual sexual activity. We therefore do not have reason to construe the term

“sexual activity” in a manner contrary to its plain meaning.

CONCLUSION

{¥ 30} We hold that the plain meaning of the term “sexual activity” as used

in the rape-shield law includes both consensual and nonconsensual sexual activity

and that both are barred from admission into evidence by the rape-shield law, absent

one of the specific exceptions listed in the law. We therefore affirm the judgment

of the Eighth District Court of Appeals.

Judgment affirmed.

O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, and STEWART,

JJ., concur.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mary

M. Frey, Assistant Prosecuting Attorney, for appellee.

Mark A. Stanton, Cuyahoga County Public Defender, John T. Martin,

Assistant Public Defender, for appellant.

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12

FILED

Che Supreme Court of Ohio 123 a1

Chink GF COURT

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. y

.

State of Ohio Case No. 2018-0338

Vv. ENTRY

Cedric N. Jeffries

Upon consideration of the jurisdictional memoranda filed in this case, the court

accepts the appeal on Proposition of Law No. I only. The clerk shall issue an order for

the transmittal of the record from the Court of Appeals for Cuyahoga County, and the

parties shall brief this case in accordance with the Rules of Practice of the Supreme Court

of Ohio.

(Cuyahoga County Court of Appeals; No. 105379)

Maureen O’Connor

Chief Justice

The Official Case Announcement can be found at http://www.supremecourt.ohio.gov/ROD/docs/

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Supreme Court of Ohio Clerk of Court - Filed March 05, 2018 - Case No. 2018-0338

| JAN 18 2.048

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 105379

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

CEDRIC N. JEFFRIES

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED IN PART; REVERSED IN PART

AND REMANDED

Criminal Appeal from the

Cuyahoga County Court of Common Pleas

Case No. CR-16-606245-A

BEFORE: Keough, P.J., Laster Mays, J., and Jones, J.

RELEASED AND JOURNALIZED: January 18, 2018

CR16606245-. A-14

A A

ATTORNEY FOR APPELLANT

Eric M. Levy

55 Public Square, Suite 1600

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley

Cuyahoga County Prosecutor

By: Jeffrey Schnatter

Assistant County Prosecutor

The Justice Center, 9th Floor

1200 Ontario Street

Cleveland, Ohio 44113

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KATHLEEN ANN KEOUGH, P.W.:

{{1} Defendant-appellant, Cedric Jeffries (“Jeffries”), appeals from the

trial court’s judgment finding him guilty of rape and kidnapping and sentencing

him to 15 years to life in prison. For the reasons that follow, we affirm in part;

reverse in part; and remand for a hearing regarding the imposition of court

costs.

I. Background

{2} Jeffries was charged in a four-count indictment as follows: Count

1, rape in violation of R.C. 2907.02(A)(1)(b); Count 2, kidnapping in violation of

R.C. 2905.01(A)(4) with a sexual motivation specification; Count 3, rape in

violation of R.C. 2907.02(A)(2); and Count 4, kidnapping in violation of R.C.

2905.01(A)(4) with a sexual motivation specification. Counts 1 and 2 related to

an incident that occurred on December 23, 2011, the victim’s twelfth birthday,

and Counts 3 and 4 related to an incident that occurred in March 2016, when the

victim was 16 years old.’ Jeffries pleaded not guilty and the case proceeded to

a jury trial.

‘Counts 1 and 2 of the indictment originally charged that the offenses occurred

on December 23, 2012. Both the prosecutor and defense counsel agreed on the record

that the correct date of the alleged offense was December 23, 2011, and informed the

trial court that the indictment should be so amended. Although the trial court never

journalized the amendment, it is clear that Counts 1 and 2 were tried with the

amended date. Jeffries does not raise any argument on appeal that he was prejudiced

by the amendment.

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{3} The evidence adduced at trial demonstrated that Jeffries and R.S.,

the victim’s mother, had an on and off relationship for several years. During

those years, R.S. had one child with Jeffries and two children with other men,

including D.S., the victim in this case. R.S. eventually lost custody of the

children, and they went to foster care.

{94} D.S. testified that she lived in three different foster homes before she

was six years old, when she went to live with H.G., Jeffries’s mother, who had

obtained custody of R.S.’s three children. Jeffries also lived in the home. D.S.

was not Jeffries’s biological child but she testified that she considered him to be

her father and called him “Dad.”

{75} D.S. testified that about a year after she moved in, Jeffries began

touching her inappropriately. She said the first incident she remembered was

when Jeffries lay on his back on the couch, placed her on his stomach, placed his

hand on her buttocks, and then moved his hand around. Both D:S. and Jeffries

were clothed during this incident.

{6} D.S. testified that the inappropriate touching continued as she grew

older. She recalled an incident when she was about nine years old when Jeffries

came into the living room while she was watching television and forced her to

take her clothes off and sit on his lap on the couch. She testified that there were

other incidents where Jeffries would force her to take her clothes off and sit on

his lap; she said that sometimes he was dressed during these incidents but at

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other times he would have his pants down. She said that during these incidents,

Jeffries would touch her buttocks, breasts, and vagina. D.S. testified that the

incidents occurred when H.G. left the house on the weekends or after her

brothers were in bed.

{7} D.S. testified that on December 23, 2011, her twelfth birthday,

Jeffries instructed her to take her clothes off and lay on the couch. She said that

Jeffries, who was undressed, laid on top of her and after touching her vagina,

inserted his fingers and then his penis into her vagina. D.S. testified that she

did not feel like she could leave or get away from Jeffries during this incident.

{§8} D.S. testified that this type of sexual activity continued for “years.”

She said that she never told anyone about the abuse because she was afraid that

no one would believe her, or she would be sent back to foster care.

{99} In March 2016, when she was sixteen years old, D.S. finally told

Jacqueline Bell, the principal at her high school, about the abuse because she

“was just tired of it.” D.S. testified that one or two weeks before she told Ms.

Bell, Jeffries came into her bedroom one night as she was sleeping. She said she

was sleeping on her stomach, dressed in pajama pants, underwear, and a

tee-shirt, when she awoke to Jeffries lying on top of her. D.S. testified that

Jeffries pulled her pajama pants and underwear down, and then pulled his own

pants off. She said that he then got back on top of her and put his penis in her

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vagina. She testified that during this incident, she did not feel like she could

leave and had no choice but to stay.

{410} After Jeffries left her room, D.S. decided to run away. She packed

two bags and left home at approximately 11 p.m. D.S. said she took Jeffries’s

cell phone with her because he had hidden her phone.

{911} During the hours after D.S. ran away, Jeffries called her over 30

times but D.S. did not answer. He also texted her at approximately 10:30 a.m.

the following morning, telling her “police on way” and asking her to “don’t tell

on me.”

{412} After she ran away, D.S. walked to her high school and when it

opened at 7 a.m., told Bell about the abuse. Bell called Cuyahoga County

Department of Children and Family Services (“CCDCFS”), and CCDCFS social

worker Shannon Sneed responded to the school and interviewed D.S. The police

were called, and Jeffries was eventually arrested.

{413} At trial, Jeffries denied that he ever sexually abused D.S. He

admitted sending a text to her the morning after she ran away, but said that he

texted “police on way” only because he did not want D.S. to be scared when the

police arrived at her school. He also said he intended to text “just talk to me”

but the old cell phone he was using somehow changed his text to “don’t tell on

23

me.

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{9/14} The jury found Jeffries guilty of all counts. The prosecutor and

defense counsel agreed that for purposes of sentencing, Counts 1 and 2 merged

and Counts 3 and 4 merged. The state elected to proceed to sentencing on

Counts 2 and 3. The trial court sentenced Jeffries to life in prison on Count 2,

with parole eligibility after 15 years, to run concurrent to 10 years incarceration

on Count 3. The court also imposed court costs. This appeal followed.

II. Law and Analysis

A. Evidence of Victim’s Prior Allegations of Nonconsensual Sexual

Abuse Precluded From Trial

{415} Prior to trial, the trial court held an in camera hearing pursuant to

State v. Boggs, 63 Ohio St.3d 418, 588 N.E.2d 318 (1992), to determine the

admissibility at trial of evidence regarding D.S.’s prior allegations of sexual

misconduct against a foster brother. At the hearing, D.S. testified that when she

was in a foster home at age four or five, one of her foster brothers sexually

abused her, including putting his penis in her vagina. She said that the activity

was not consensual, and that she honestly disclosed the abuse to a CCDCFS

social worker. The trial court then denied Jeffries’s request to allow defense

counsel to ask questions of D.S. regarding these prior allegations of sexual abuse

by the foster brother, concluding that cross-examination on this issue was

precluded by Ohio’s rape shield statute. In his first assignment of error, Jeffries

contends that the trial court erred in denying his request because it violated his

Sixth Amendment right to confront the witnesses against him.

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{416} R.C. 2907.02(D), Ohio’s rape shield statute, states, in relevant part,

that:

Evidence of specific instances of the victim’s sexual activity, opinion

evidence of the victim’s sexual activity, and reputation evidence of

the victim’s sexual activity shall not be admitted under this section

unless it involves evidence of the origin of semen, pregnancy, or

disease, or the victim’s past sexual activity with the offender, and

only to the extent that the court finds that the evidence is material

to a fact at issue in the case and that its inflammatory or prejudicial

nature does not outweigh its probative value.

{417} Jeffries cites to State uv. Stoffer, 7th Dist. Columbia No. 09-CO-1,

2011-Ohio-5133, in which the Seventh District found that the rape shield statute

address only prior consensual sexual activity of the victim and not prior sexual

abuse suffered by the victim. Id. at [ 98. Thus, in Stoffer, although it ultimately

found the error to be harmless, the Seventh District held that the trial court

erred in applying the rape shield statute to preclude the defendant from

introducing evidence that the victim had previously been sexually abused by

someone other than the defendant. In State v. Sledge, 6th Dist. Lucas No. L-15-

1109, 2016-Ohio-4904, the Sixth District, citing Stoffer, found that where alleged

prior sexual abuse of the victim does not result from “volitional sexual acts * *

* it may not fall within the general prohibition mandated by R.C. 2907.02(D).”

Id. at § 19. In reliance on Stoffer and Sledge, Jeffries asserts that the rape

shield statute did not preclude his cross-examination of D.S. regarding her prior

allegations of sexual abuse against a foster brother. We disagree because the

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Ohio Supreme Court has made it clear that both prior nonconsensual and

consensual sexual activity of the victim are protected by the rape shield statute.

{918} In Boggs, supra, the Ohio Supreme Court considered whether the

rape shield statute prohibits a defendant from cross-examining an alleged rape

victim about prior false rape allegations. The court held that before crossexamination of a rape victim regarding prior false rape accusations may proceed,

“the trial judge shall hold an in camera hearing to ascertain whether such

testimony involves sexual activity and thus is inadmissible under R.C.

2907.02(D), or is totally unfounded and admissible for impeachment of the

victim.” Boggs, 63 Ohio St. at 424, 588 N.E.2d 318.

{419} The Supreme Court also held that the burden is on the defendant

to demonstrate that the accusations were false. The court stated:

the initial inquiry must be whether the accusations were actually

made by the prosecutrix. Moreover, the trial court must also be

satisfied that the prior allegations of sexual misconduct were

actually false or fabricated. That is, the trial court must ascertain

whether any sexual activity took place, t.e., an actual rape or

consensual sex. If it ts established that either type of activity took

place, the rape shield statute prohibits any further inquiry into this

area. Only if it is determined that the prior accusations were false

because no sexual activity took place would the rape shield law not

bar further cross-examination.

(Emphasis added.) Jd. at 423. In short, if any type of sexual activity occurred

and the allegation was not false, the victim is protected by the rape shield

statute, and the defendant may not question the victim about the prior sexual

activity.

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{{20} Here, the trial court conducted an in camera hearing at which it

learned that the incident involving D.S.’s foster brother had occurred one or two

years before she moved in with H.G. and Jeffries. D.S. never wavered from her

claims that the incident occurred, and that she honestly reported it to CCDCFS.

After hearing from D.C., the trial court decided that the incident was protected

by the rape shield statute because it involved sexual activity, and there was no

evidence whatsoever that the allegation was false. On this record and in light

of Boggs, we find no abuse of discretion in the trial court’s ruling. The first

assignment of error is therefore overruled.

B. Other Acts Evidence

{9 21}In his second assignment of error, Jeffries contends that the trial

court erred by admitting evidence of his prior bad acts; specifically, in allowing

D.S. to testify about prior instances of sexual abuse against her other than the

two incidents for which he was indicted. Jeffries contends this evidence was

“classic bad-man evidence” that was unrelated to the two incidents for which he

was indicted and allowed the jury to convict him on the charged offenses merely

because it assumed that he acted in conformity with his bad character.

{22} Defense counsel did not object to the admission of this evidence at

trial and therefore has waived all but plain error on appeal. State v. Jones, 91

Ohio St.3d 335, 343, 744 N.E.2d 1163 (2001); State v. Tibbs, 8th Dist. Cuyahoga

No. 89723, 2008-Ohio-1258, 4 9. Plain error exists where, but for the error, the

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outcome of the trial clearly would have been different. Tibbs at id. Appellate

courts find plain error only in exceptional cases where it is necessary to prevent

See

a manifest miscarriage of justice. Id.

{23} “Evidence that an accused committed a crime other than the one for

which he is on trial is not admissible when its sole purpose it to show the

accused's propensity or inclination to commit crime, or that he acted in

conformity with bad character.” Siate v. Williams, 134 Ohio St.3d 521, 2012-

Ohio-5695, 983 N.E.2d 1278, § 15. However, there are exceptions that allow

other acts of wrongdoing to be admitted.

{24} First, R.C. 2945.59 provides that:

{i]n any criminal case in which the defendant’s motive or intent, the

absence of mistake or accident on his part, or the defendant's

scheme, plan, or system in doing an act is material, any acts of the

defendant which tend to show his motive or intent, the absence of

mistake or accident on his part, or the defendant’s scheme, plan, or

system in doing the act in question may be proved, whether they are

contemporaneous with or prior or subsequent thereto,

notwithstanding that such proof may show or tend to show the

commission of another crime by the defendant.

{925} Also, Evid.R. 404(B) provides that evidence of other crimes, wrongs,

or acts is permitted to show proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or the absence of mistake or accident.

{426} In deciding whether to admit other acts evidence, trial courts should

conduct a three-step analysis:

The first step is to consider whether the other acts evidence is

relevant to making any fact that is of consequence to the

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determination of the action more or less probable than it would be

without the evidence. Evid.R. 401. The next step is to consider

whether evidence of the other crimes, wrongs, or acts is presented

to prove the character of the accused in order to show activity in

conformity therewith or whether the other acts evidence is

presented for a legitimate purpose, such as those stated in Evid.R.

404(B). The third step is to consider whether the probative value of

the other acts evidence is substantially outweighed by the danger of

unfair prejudice. See Evid.R. 403.

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278 at § 20.

{927} Applying this test to the challenged testimony, we find no abuse of

discretion by the trial court in admitting the evidence. First, the other acts

evidence was relevant because it tended to show Jeffries’s plan for grooming DS.

for sexual activity. “Shaping and grooming describes the process of cultivating

trust with a victim and gradually introducing sexual behaviors until reaching

the point ofintercourse.” Jd. at { 21, quoting United States v. Johnson, 132 F.3d

1279, 1280, fn. 2 (9th Cir.1997). D.S.’s testimony established that the grooming

started at six years of age when Jeffries held her and touched her buttocks;

progressed through the years to Jeffries having her take her clothes off and sit

naked on his lap; escalated to Jeffries touching her breasts and vagina; and

finally, culminated in incidents when Jeffries would insert his penis in D.S.’s

vagina.

{28} Next, the testimony was elicited for a legitimate purpose under

Evid. R. 404(B), which provides that other acts evidence may be admitted to show

motive, intent, plan, scheme and absence of mistake. D.S.’s testimony was

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relevant to Jeffries’s plan and scheme to groom her over the years from touching

to sexual intercourse.

{429} And the probative value of the evidence was not outweighed by the

danger of unfair prejudice. Rather than inflaming the jury and appealing only

to its emotions (the general test for unfairly prejudicial evidence), the evidence

of Jeffries’s grooming of D.S. provided a basis for the jury to recognize his

ongoing scheme for sexual activity with D.S. And although the trial court did

not give a limiting instruction regarding the other acts evidence, D.S. was

subject to cross-examination, and defense counsel challenged her credibility and

testimony regarding Jeffries’s sexual motives and actions. Likewise, Jeffries

testified in his own defense that D.S. was lying. The jury was free to judge the

credibility of the witnesses.

{430} Finally, Jeffries did not request that the trial court give a limiting

instruction regarding the other acts evidence. His failure to do so waives all but

plainerror. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104,

§ 136. Where the defense fails to request a limiting instruction on other acts

evidence, the trial court’s failure to give such an instruction is not plain error

where nothing suggests the jury used other acts evidence to convict the

defendant because he was a bad person. Id. Jeffries points to nothing that

suggests the jury did so. Accordingly, we find no plain error in the trial court’s

failure to give a limiting instruction and in admitting the other acts evidence.

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{{31} The second assignment of error is therefore overruled.

C. Jury Instruction — Kidnapping

{932} Under R.C. 2905.01(C)(3)(a), if the victim of a kidnapping was under

13 years of age and the offender is also convicted of a sexual motivation

specification, as Jeffries was, kidnapping is a felony of the first degree, and the

offender shall be sentenced to an indefinite term of 15 years to life in prison. If,

however, the victim was released in a safe place unharmed, the offender shall

be sentenced to an indefinite term of 10 years to life in prison.

{33} In his third assignment of error, Jeffries contends that he was

deprived of his Sixth Amendment right to trial by jury because the trial court did

not instruct the jury with respect to Count 2 that it should make a

determination as to whether D.S. was released in a safe place unharmed. He

argues that the “released in a safe place unharmed” provision of R.C.

2905.01(C)(8)(a) is a factual sentencing determination that the finder of fact is

required to make because it controls which of the two sentencing terms the trial

court is required toimpose. He asserts that the trial court therefore erred in not

instructing the jury to make this determination. Jeffries did not request such

a jury instruction, however, and has waived all but plain error, which we do not

find.

{{34} This court considered and rejected a similar argument in State v.

Bolton, 8th Dist. Cuyahoga No. 96385, 2012-Ohio-169. In Bolton, the defendant

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argued that he was denied due process because the trial court did not instruct

the jury to determine whether the victim was released in a safe place unharmed,

a factor that would have reduced the kidnapping offense in that case from a

felony of the first degree to a second-degree felony. We found that the “released

in a safe place unharmed” provision of R.C. 2905.01(C) is not an element of the

offense of kidnapping; instead the defendant “must plead and prove that

assertion as an affirmative defense.” State v. McKnight, 107 Ohio St.3d 101,

2005-Ohio-6046, 837 N.E.2d 315, 9 233. See also State v. Singleton, 8th Dist.

Cuyahoga No. 103478, 2016-Ohio-4696, { 35.

{935} We also found that “the court has no duty to give jury instructions

that are neither supported by the facts nor that assist the jury.” Bolton at J 56,

quoting State v. Ogletree, 8th Dist. Cuyahoga No. 79882, 2002-Ohio-4070, § 14.

Because the appellant had failed to provide any evidence that the victim was

released unharmed, we held that the trial court did not err by not giving a jury

instruction on the “released in a safe place unharmed” issue. Bolton at id.

{36} In this case, as in Bolton, Jeffries never argued that D.S. was

released unharmed nor did he provide any evidence that she was released

unharmed. Instead, ample evidence provided by the state demonstrated that

D.S. was indeed harmed — she was raped by Jeffries before she was released.

Further, she was referred for psychological counseling after the abuse was

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666.

discovered.” As this court stated in Bolton, “it is difficult indeed to imagine that

one may engage in sexual activity with another against their will and still argue

that such a person is left ‘unharmed.” Jd., quoting State v. Arias, 9th Dist.

Lorain No. 04CA008428, 2004-Ohio-4443, J] 38. Because there was no evidence

that D.S. was released unharmed, the trial court did not err in not instructing

the jury on this issue. The third assignment of error is overruled.

D. Ineffective Assistance of Counsel

{937} Jeffries next argues that his counsel was ineffective for not (1)

objecting to the admission of other acts evidence; (2) objecting to the lack of a

“released in a safe place unharmed” jury instruction; and (8) filing an affidavit

of indigency and asking the court to waive the imposition of court costs at

sentencing.

{938} To establish ineffective assistance of counsel, a defendant must

demonstrate that counsel’s performance fell below an objective standard of

reasonable representation and that he was prejudiced by that performance.

State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, 4 205,

citing Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052

(1984). Prejudice is established when the defendant demonstrates “a reasonable

probability that but for counsel’s unprofessional errors, the result of the

For purposes of R.C. 2905.01, “harm” includes both physical and psychological

harm. State v. Mohamed, Slip Opinion No. 2017-Ohio-7468, 4 14.

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